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Standing: An Affirmative Defense to Mortgage Foreclosure

Posted on: April 1, 2013

To have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question. Mazine v. M & I Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011).  The plaintiff must prove that it had standing to foreclose when the complaint was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).

In Lindsey v. Wells Fargo Bank, N.A., No. 1D12-2406 (Fla. 1st DCA 2013), Lindsey appealed final summary judgment entered in favor of Wells Fargo for mortgage foreclosure. The First District Court of Appeal reversed and remanded because Wells Fargo failed to establish its standing to foreclose.

In March 2007, Lindsey executed and delivered a promissory note to Option One Mortgage. The note was secured by a mortgage on property owned by Lindsey. In January 2009, Lindsey was given notice that he was in default after he stopped making payments on the note. On April 2, 2009, Wells Fargo filed a complaint to foreclose the mortgage.  The copy of the note and mortgage attached to the complaint named Option One as the lender and mortgagee.

Wells Fargo filed the original note with the court along with an Assignment of Mortgage dated April 10, 2009.  The Assignment of Mortgage did not purport to transfer the note, and the original note filed with the court did not include a special endorsement to Wells Fargo or a blank endorsement. 

Wells Fargo subsequently filed a motion for summary judgment.  However, the affidavits filed by Wells Fargo did not prove Wells Fargo’s ownership of the note. Nonetheless, the trial court entered a Final Judgment of Mortgage Foreclosure.

The First District Court of Appeal reversed, and held that Wells Fargo failed to demonstrate that it was the holder of the note and mortgage at the time the foreclosure complaint was filed.  Although Wells Fargo filed a document showing that the mortgage was assigned to it by Option One, the document did not, however, assign the note. 

The attorneys at Schecter Law have vast experience in all aspects of complex commercial and residential mortgage foreclosures. Schecter Law has represented institutional and individual lenders in connection with foreclosing both commercial and residential properties. Our attorneys’ vast experience in the area of Florida foreclosure law enables us to assist our clients in developing creative and cost-effective solutions to mortgage foreclosure and deficiency related issues.